dgm
gm IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.3030 OF 2009
Mahabir Nuniwal, Age 54,
Indian Inhabitant, of Mumbai,
residing at K, D.N.Nagar, J.P.Road,
Andheri (West), Mumbai 400058 Petitioner
(Orig.Disputant)
Vs.
1. Neptune Co-operative Housing
Society Ltd.
A cooperative society registered
under the provisions of the M.C.S.
Act, 1960, and having its registered
address at K3/K4, D.N.Nagar,
J.P.Road, Andheri (West),
Mumbai 400058.
2. M/s.Vaidehi Akash Housing Pvt.Ltd.
A company incorporated under the
provisions of the Indian Companies
Act, 1956, and having its registered
address at Pratik, 1st floor,
Opp.Apna Bazar, J.P.Road,Andheri(West),
Mumbai 400058. ..Respondents
(Orig. Opponents)
ALONG WITH
WRIT PETITION NO.3017 OF 2009
Sulochana S. Gaikwad, Age 72,
Indian Inhabitant, of Mumbai,
residing at K, D.N.Nagar, J.P.Road,
Andheri (West), Mumbai 400058 Petitioner
(Orig.Disputant)
Vs.
1. Neptune Co-operative Housing
Society Ltd.
A cooperative society registered
under the provisions of the M.C.S.
Act, 1960, and having its registered
address at K3/K4, D.N.Nagar,
J.P.Road, Andheri (West),
Mumbai 400058.
2. M/s.Vaidehi Akash Housing Pvt.Ltd.
A company incorporated under the
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provisions of the Indian Companies
Act, 1956, and having its registered
address at Pratik, 1st floor,
Opp.Apna Bazar, J.P.Road,Andheri(West),
Mumbai 400058. ..Respondents
(Orig. Opponents)
ALONG WITH
WRIT PETITION NO.3028 OF 2009
Padmaraj Kanmalji Israni,Age 38,
Indian Inhabitant, of Mumbai,
residing at K, D.N.Nagar, J.P.Road,
Andheri (West), Mumbai 400058 Petitioner
(Orig.Disputant)
Vs.
1. Neptune Co-operative Housing
Society Ltd.
A cooperative society registered
under the provisions of the M.C.S.
Act, 1960, and having its registered
address at K3/K4, D.N.Nagar,
J.P.Road, Andheri (West),
Mumbai 400058.
2. M/s.Vaidehi Akash Housing Pvt.Ltd.
A company incorporated under the
provisions of the Indian Companies
Act, 1956, and having its registered
address at Pratik, 1st floor,
Opp.Apna Bazar, J.P.Road,Andheri(West),
Mumbai 400058. ..Respondents
(Orig. Opponents)
ALONG WITH
WRIT PETITION NO.3029 OF 2009
Nalini Dawade, AGE: 50,
Indian Inhabitant, of Mumbai,
residing at K, D.N.Nagar, J.P.Road,
Andheri (West), Mumbai 400058 Petitioner
(Orig.Disputant)
Vs.
1. Neptune Co-operative Housing
Society Ltd.
A cooperative society registered
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under the provisions of the M.C.S.
Act, 1960, and having its registered
address at K3/K4, D.N.Nagar,
J.P.Road, Andheri (West),
Mumbai 400058.
2. M/s.Vaidehi Akash Housing Pvt.Ltd.
A company incorporated under the
provisions of the Indian Companies
Act, 1956, and having its registered
address at Pratik, 1st floor,
Opp.Apna Bazar, J.P.Road,Andheri(West),
Mumbai 400058. ..Respondents
(Orig. Opponents)
ALONG WITH
WRIT PETITION NO.3031 OF 2009
Maheshkumar Kanmallji Israni,Age 32,
Indian Inhabitant, of Mumbai,
residing at K, D.N.Nagar, J.P.Road,
Andheri (West), Mumbai 400058 Petitioner
(Orig.Disputant)
Vs.
1. Neptune Co-operative Housing
Society Ltd.
A cooperative society registered
under the provisions of the M.C.S.
Act, 1960, and having its registered
address at K3/K4, D.N.Nagar,
J.P.Road, Andheri (West),
Mumbai 400058.
2. M/s.Vaidehi Akash Housing Pvt.Ltd.
A company incorporated under the
provisions of the Indian Companies
Act, 1956, and having its registered
address at Pratik, 1st floor,
Opp.Apna Bazar, J.P.Road,Andheri(West),
Mumbai 400058. ..Respondents
(Orig. Opponents)
Mrs.Varsha Palav with Mr.V.C.Singh for the
petitioners.
Mr.Vijay A. Thorat, Sr.Advocate with Mr.R.A.Thorat
for respondent no.1.
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Mr.A.Y.Sakhare, Sr.Advocate with Ms.Lakshmi Murali
for respondent no.2.
CORAM : ANOOP V.MOHTA,J.
V.MOHTA,J
DATED : 26th March, 2009.
ORAL JUDGMENT:
Heard finally by consent of the parties.
Since the issues involved in all these petitions are
common, the same are being disposed of by this common
judgment.
2. The ig petitioners being aggrieved by the Order of
appointment of Receiver on Applications filed by the
respondents-society initially granted by a common
order dated 10.12.2008 by the Cooperative Court,
Mumbai in Disputes filed by the respondents-societies
praying for damages, as well as, an interim injunction
including an appointment of Receiver against the
petitioners/opponents in the said Disputes.
3. The Maharashtra Cooperative Appellate Court,
Mumbai has also maintained the said order by a common
order dated 07.03.2009 and thereby dismissed the
Appeals filed by the petitioners.
4. Admittedly, as the requisite members, i.e. 70%,
were available at the relevant time and after due
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amalgamation of two societies i.e. K-3 and K-4 and as
they decided to redevelop the entire property of both
the societies for larger benefits to members and as
the buildings were in a dilapidated condition and
required to be demolished, based upon various
Resolutions, resolved to demolish the existing
building and decided to construct the new buildings by
carrying out development on the said plot, the
Agreements for Developments dated 25.07.2005 and
12.01.2006 have been entered into between the two
societies and as
ig respondent no.2 has been appointed as
Developer to develop the entire society’s properties
and as the Agreement has been confirmed under the Deed
of Confirmation for Development dated 03.03.2007 by
respondent no.1-society and as respondent no.2 has
been proceeding with the redevelopment work, after due
registration of respondent no.1-society, as the
development of the plot/property in question is in
progress since then.
5. The concerned respondent, pursuance to the
Agreement has spent huge amount of about more than
Rs.3 crores (Rupees three crores). Out of 80 members,
54 members have already vacated their respective
premises. The concerned respondent paid Rs.1 lac
(Rupees one lac) to each member and has been paying
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rent for their occupation at other place at the rate
of Rs.8,000/- per month apart from huge money on the
construction of development of plot in question, based
upon the approved Plan and I.O.D. as amended from
time to time.
6. The petitioners dispute with regard to the various
Resolutions about appointment of the builder including
their challenge to the basic amalgamation as well as
the requisite 70% is still pending. Under the Scheme
of Development ig Control Regulation for Greater Mumbai,
1991, the Cooperative Housing Society/Developer, if
have obtained No Objection Certificate (NOC) from the
MHADA/Mumbai Board, thereby sanctioning additional
balance FSI with a consent of 70% of its members and
where such NOC holder has made provision for
alternative accommodation in the proposed building
(including transit accommodation) then it shall be
obligatory for all the occupiers/members to
participate in the Redevelopment Scheme and vacate the
3existing tenement for the purpose of redevelopment.
It is also provided that in case of failure to vacate
the existing tenement for the purpose of
redevelopment, an appropriate proceedings can be
initiated for the purpose of getting tenements vacated
from the non-cooperative members.
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7. Merely because there are disputes or challenges
pending as raised by the petitioners and such other
members, that itself cannot be the reason to stop the
progress of the development which is at advance stage.
The requisite members/percentage, available at the
relevant time and by following due procedure of law,
based upon the same, the parties proceeded further and
now the development is at advance stage, the
grievances, even if any of the persons like the
petitioners, ig unless adjudicated finally, the progress
just cannot be halted at the instance of such persons.
8. In such circumstances, there are always objections
and disputes by remaining 30% members or less against
such Scheme which, in my view, unless decided finally,
cannot be the reason to halt the advance development
of the project, as it involves huge money which are
already spent and as majority of the members have
already acted upon the said Agreements and are
enjoying the benefits out of the same.
9. In the present cases,as noted and observed by both
the Courts, this Court in other Writ Petitions had
occasion to consider the similar/identical grievances
raised against the concerned respondents. In Writ
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Petition No.5540/2007 in para 5, this Court by its
Order dated 27th September, 2007 has observed as
under:
“5. …….. Selection of developer and
entering into a contract with the developer
does not depend upon the whims of one or two
members. The respondent No.2 has been
appointed as a developer by the society, andsaid action has been approved by the General
Body. Thus the appointment of respondent
No.2 as a developer, prima facie appears to
be legal, and at any rate, cannot be flouted
at this stage.”
Again in ig Writ Petition No.3783/2008, this Court by
its order dated 6.08.2008 has observed in para 11,
the relevant portion of which is as under:
“11. ……..Petitioner cannot make any
grievance regarding validity of the order
amalgamating the two societies as well as,development agreement entered into by K-3
and K-4 societies and subsequent deed of
confirmation executed by the respondentno.1 society, especially when, the majority
members have consented for development
agreement. At this stage, it is also worth
to mention that way back in 2006 MHADA
declared both the buildings i.e. K-3 andK-4, as unfit for the habitation. It is
also not disputed by ld. counsel for the
petitioner that K-4 building has already
been demolished. In the set of facts and
circumstances of both cases, in my opinion,
the redevelopment work cannot be stalled atthe instance of the petitioner.”
10. Now, merely because in the Disputes filed by the
respondent-society, claimed damages against the
petitioners for creating obstruction in the Project
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and as prayer are made for injunction/appointment of
Receiver, the learned Courts below, in view of the
background referred above, granted an Order of
appointment of Receiver which, in my view, cannot be
said to be perverse or without any basis. On the
contrary, considering the Scheme and purpose as
referred above, it is well within the frame work of
law and the record. The submission that such Dispute
itself is not maintainable for damages including such
application for Receiver as granted in the present
facts and ig circumstances of the case is not correct or
at least that cannot be the reason to interfere with
the orders passed by the Courts below at this stage of
the matter.
11. Sofar as the subsequent amendment to the I.O.C.
or entitlement of their area as per their Agreement or
otherwise is always a matter which can be decided or
adjudicated by the society/developer by resolving the
problems, if any. All the valid members are entitled
to get resolved such Disputes even of area or their
entitlement as per the Scheme or as per the Rule.
But, if such members instead of submitting to the
Scheme want to create hurdle or want to obstruct the
proceedings/redevelopment of the Project in question,
at their instance on that ground also such Projects
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just cannot be halted.
12. The legitimate members, the builders and the
societies as recorded above can resolve the internal
dispute with regard to the properties construction
area, if any or such other issues on that ground also,
I am not inclined to interfere with the order as
passed by the Courts below.
13. I am not considering at this stage basically the
maintainability of
ig the Suit or the main relief as
claimed in the pending Suits/the Disputes.
Considering the facts and circumstances, the order
appointing the Receiver to take possession is only for
temporary displacement, there is no dispute about the
ownership of the property and the object and purpose
of requirement of vacant possession of land. Even the
temporary accommodation would be provided to the
Petitioners. It needs to be provided as per the
Scheme itself. Such members will be put back in
possession in the new building as per the Scheme.
14. Admittedly, the petitioners are not at present
ready to vacate the premises which is definitely
affecting the further development of the Scheme. In
this background I am also of the view that there is
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sufficient case made out by the concerned respondents
for appointment of Receiver and Order as passed in the
present cases. All the basic elements as required to
pass such order is clearly borne out from the record
itself. The peculiarity of the Scheme read with the
circumstances including the requirement of the vacant
land further supports the grant of such order.
15. The petitioners are not willing to give any
security to support any interim order or injunction
order, if passed
ig by this Court stopping the progress
of the Project, as, admittedly, the concerned
respondents have already spent more than Rs.3 crores
(Rupees three crores) for the Project and they are
regularly paying the considerable amount to all
members who have already shifted for their
occupation/rent charges.
16. Taking all this into account, in my view, it is
in the interest of all the parties that such Project
should be completed as early as possible so that all
the members who have already shifted pursuant to the
Scheme will be in a position to use and utilise
redeveloped property.
17. Resultantly, all these writ petitions are
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dismissed. No costs.
18. The learned counsel for the petitioners seek stay
of this order for four weeks from today. Considering
the reasoning given above, I am not inclined to grant
any further protection in this regard.
19. However, a statement is made by the learned
counsel for respondents 1 and 2 that they shall not
take any action pursuance to the impugned order
without giving ig at least two weeks notice to the
petitioners. This, according to me, suffice to
protect the present position of the petitioners, if
any.
( ANOOP V. MOHTA, J.)
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